BILL ANALYSIS                                                                                                                                                                                                    






               SENATE JUDICIARY COMMITTEE              A
                   Charles M. Calderon, Chairman       B
                    1995-96 Regular Session
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AB 1770
Assemblymember Brewer
As amended on January 31, 1996
Hearing Date: February 6, 1996
Public Utilities Code
GEH:cb

                       UTILITY SERVICES
                    LANDLORD AND TENANT

                          HISTORY

Source:  California Apartment Association 

Related Pending Legislation:  AB 318 (Katz)

Prior Votes:  Not relevant.

SPECIAL NOTE:

This bill has been amended recently to remove all of its  
prior provisions and to replace them with the provisions of  
last year's AB 1785 (Brewer).  AB 1785 was vetoed by the  
governor at the author's request because the author  
discovered after the legislative session had ended that a  
typographical error ("for" instead of "or") changed the  
intended meaning of the bill.  AB 1785 was the subject of  
two lengthy hearings in this committee last year, and it  
passed 6 to 1 after being substantially amended by the  
committee.  This bill, as amended, is identical to AB 1785  
as it left this committee last year, except for the  
deletion of the typographical error and the addition of an  
urgency clause.

                          KEY ISSUES

1.   SHOULD MUNICIPAL UTILITIES BE PROHIBITED FROM CHARGING  
                                                             




AB 1770 (Brewer)
Page 2



    subsequent tenants or landlords for a bill incurred,  
    but not paid, by a previous tenant?

2.   SHOULD MUNICIPAL UTILITIES BE REQUIRED TO OBTAIN THE  
    CONSENT OF A LANDLORD BEFORE REQUIRING ITS TENANTS'  
    UTILITY SERVICE TO BE BILLED TO THE LANDLORD'S ACCOUNT?

   3.    SHOULD MUNICIPAL UTILITIES BE ABLE TO REQUIRE A  
     SECURITY DEPOSIT OF NO MORE THAN THREE TIMES THE  
     AVERAGE MONTHLY BILL?

                              
                          PURPOSE

The purpose of this bill is to prohibit a number of  
practices by municipal utilities that apartment owners  
believe are unfair because they make the landlord  
responsible for nonpayment of utility bills by their  
tenants.

There are at least two types of municipal utilities:  
"municipally owned utilities", which are public utilities  
owned by cities (Section 10000  et.  seq. of the Public  
Utilities Code); and "municipal utility districts" (MUDs),  
which are special districts organized for the purpose of  
providing utility service (Section 11500  et.  seq. of the  
Public Utilities Code).  There are hundreds of  
"municipally-owned utilities" in the state, but there are  
only two major MUDs: the East Bay Municipal Utility  
District (EBMUD), which provides water and sewer service,  
and the Sacramento Municipal Utility District (SMUD), which  
provides electrical service. 

 Expanding prohibition against seeking payment from other  
people for previous tenants' nonpayment

Under existing law, both types of municipal utilities, when  
they provide  water service directly on the account of a  
tenant, are prohibited from seeking to recover from a  
subsequent tenant any charges which were incurred by a  
previous tenant. (Sections 10016 and 12811.5 of the Public  
Utilities Code).

 This bill would expand this provision to apply to the  
provision of all utility services, not just water service,  
                                                             




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and clarifies that subsequent tenants can be charged for  
previous tenants' non-payment if the subsequent tenant is  
an adult who lived with the non-paying previous tenant.

The bill also expands this provision to prohibit property  
owners from being charged for nonpayment by previous  
tenants.

 Requiring tenants' service to be on the account of the  
landlord

Existing law authorizes both types of municipal utilities,  
when there has been a nonpayment by a previous tenant for  
 water service, to "require that service to subsequent  
tenants be furnished on the account of the landlord or  
property owner." (Sections 10016 and 12811.5)  

 This bill deletes this provision for both types of  
utilities and instead  prohibits municipal utilities from  
requiring that service to subsequent tenants be furnished  
on the account of the landlord or property owner unless the  
property owner consents through a written agreement.

The bill applies this prohibition to  all utility services,  
rather than just to water service.

This measure exempts master-metered buildings from its  
provisions.  As a result, municipal utilities could  
continue to require landlords in master-metered buildings  
to be billed directly.

 Changing the ability to require deposits

Existing law provides that the decision of both types of  
municipal utilities to require a new residential applicant  
to deposit a sum of money prior to establishing an account  
"shall be based solely upon the credit worthiness of the  
applicant as determined by the public utility." (Sections  
10009.6 and 12822.6).

 This bill retains this provision requiring deposits to be  
based upon credit worthiness, but it prohibits both types  
of municipal utilities from demanding or receiving security  
in an amount that exceeds two billing cycles of service  
charges, or three times the average monthly bill.
                                                             




AB 1770 (Brewer)
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                          COMMENT

1.   Seeking payment from other people for previous tenants'  
    nonpayment

    There does not appear to be any opposition to  
    prohibiting utilities from trying to make another  
    person pay for service rendered to a previous tenant,  
    whether that other person is a subsequent tenant or a  
    landlord, and whether the bill was for water or another  
    utility service.  The municipal utilities which are  
    otherwise opposed to this bill state that they are  
    unaware of any utility which is engaged in this  
    practice.

    The only concern about this provision from utilities  
    related to persons who claim that they should not be  
    held responsible for non-payment by their previous  
    roommate.  AB 1785 was amended in this committee last  
    year to address this problem by providing that a  
    "subsequent tenant" shall not include any adult person  
    who lived at the residence during the period that the  
    charges or penalties accrued.  

2.   Requiring tenants' service to be on the account of the  
    landlord

    a)       Framing the issue

            This provision is based upon the premise that  
        the fairest and cleanest way to enforce nonpayment  
        of utility bills is to terminate the service of the  
        non-paying customer.  If tenants are billed  
        directly for their own utility service, it is not  
        unfair to terminate their service if they are  
        delinquent in their payment.  The ability to  
        terminate the service of the non-paying party  
        obviates the need to use liens on the property to  
        secure payment, which landlords believe unfairly  
        holds them responsible for tenants'  
        irresponsibility.  
            
            Tenants' groups do not oppose this provision,  
                                                             




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        because of the limitation on the amount of deposits  
        discussed in the next comment.  However, municipal  
        utilities are strenuously opposed to the provision.  
         The utilities want to avoid the political and  
        legal problems associated with terminating basic  
        utility service.  They greatly prefer to enforce  
        delinquent accounts through pursuing the more  
        solvent landlord, even if they cannot secure their  
        debt with a lien.  

            Municipal utilities also point out that the  
        only explicit authority in existing law for  
        utilities to require service to be billed on the  
        account of a landlord for usage by a tenant is for  
        water service to a property at which there is a  
        history of prior nonpayment by tenants.  (Sections  
        10016 and 12811.5 of the Public Utilities Code).   
        They believe that this is an appropriately limited  
        power to protect their interests. 

    b)       Who is in a better position to influence  
        tenant?

            The East Bay Municipal Utilities District  
        argues that property owners are in a better  
        position than utilities to ensure that the tenant  
        pays its utility bill:

               "We do not believe it is unfair to the  
          landlord to hold that person responsible for  
          services rendered to his or her property.   
          Clearly, the landlord is in a far better  
          position to exercise control and influence  
          over the tenant's actions by simply  
          including the amounts owed for utility  
          service within the rent owed to the  
          landlord." 

            In response, the Southern California Apartment  
        Association believes that the opposite is the case:

               "... an owner has no control over a  
          resident's motivation to meet his or her  
          financial obligations.  Municipalities have  
          as much or more power than a property owner  
                                                             




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          to force the payment of an outstanding  
          debt."    

    c)       Since the property owner benefits from service  
        to the property, is it fair to make a property  
        owner pay the tenant's bill? 

            Best, Best and Krieger, writing on behalf of a  
        number of its water and irrigation district  
        clients, argues that it is better to charge the  
        landlord for service rendered to its property than  
        to raise rates for all other users: 

               "If the tenant runs up a high water bill  
          irrigating the property owned by the  
          landlord, and then suddenly vacates the  
          property without paying the bill, who would  
          be more equitably responsible for the cost of  
          the water that was delivered:  the owner  
          whose property benefited from the irrigation  
          water, or the other customers who will have  
          to absorb the cost if the property owner is  
          not required to pay?o 

            In response, the California Apartment  
        Association (CAA) argues that property owners have  
        already been assessed for the benefit of having  
        utility service provided to their property:

              "Utilities are a  
          community/service/benefit.  Benefit is  
          assessed twice.  Initially as a property is  
          developed, the developer pays an extension  
          fee to extend utility lines to the  
          development and a connection fee when a  
          building permit is pulled for the unit.   
          These costs are passed on to the property  
          owner when the property is purchased.  By  
          requiring property owners to pay for tenant  
          service charges, the property is paying for  
          the benefit of connecting and using utilities  
          three and four times over." 

    d)       Should municipal utilities be treated like  
        privately-owned utilities?
                                                             




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            CAA argues that utilities should be held  
        accountable as businesses:

              "Efficient management of utility  
          receivables after the first billing cycle  
          should reveal account delinquencies that the  
          utility can act on prior to service charges  
          exceeding the amount of the security deposit.  
           Other efficient business practices such as  
          credit checking systems and uncollectables  
          accounting can also be used to manage  
          uncollectable debt without relying on  
          uninvolved third parties, such as property  
          owners." 

            In response, municipal utilities point out that  
        they are not the same as businesses because they  
        cannot refuse to serve a particular customer, and  
        because termination of service is often not a  
        politically feasible remedy for them to pursue when  
        a bill is not paid.  In some cases, termination is  
        not even legal because local public health officers  
        prohibit water service from being terminated.

            Municipal utilities also argue that this bill  
        will in fact create an unfair situation where  
        municipally-owned utilities are treated differently  
        than privately-owned utilities.  Under Section 2714  
        of the Public Utilities Code, privately-owned  
        utilities are guaranteed the ability to place an  
        account in a landlord's name if there has been a  
        history of nonpayment by prior tenants.  The League  
        of Cities argues that it is nonsensical to treat  
        landlords served by municipally-owned utilities  
        more favorably than landlords served by  
        privately-owned utilities.

            should the bill be amended to apply its  
        provisions to privately-owned utilities, too?

3. Changing the ability to require deposits

  Tenant organizations were concerned that, if utilities  
  could not require service to be provided on the account  
                                                             




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  of the landlord when there has been a history of  
  nonpayment by previous tenants, that the utility instead  
  would require overly burdensome deposits from the  
  subsequent tenants.  As a result, this bill was amended  
  to prohibit utilities from requiring security deposits in  
  an amount that exceeds two billing cycles, or three  
  months, of average service charges.

  Municipal utilities are opposed to this limitation  
  because they believe that the utility should be able to  
  make a case-by-case determination of what deposit amount  
  is appropriate.

  Best, Best and Krieger raises the concern that the  
  "average" service charge can often be exceeded by  
  different tenants by three or fourfold by "imprudent  
  water consumption practices or simple negligence in  
  leaving faucets running or toilets in a "'stuck'  
  position."  Therefore, the deposit allowed under this  
  bill may be significantly less than the amount owed by a  
  delinquent tenant even for one billing cycle.

  This problem can be exacerbated if a tenant avails  
  himself or herself of the provisions of Government Code  
  Section 6071, which prevents municipal utilities from  
  terminating service for nonpayment during the pendancy of  
  an investigation of customer dispute.

Support:       California Apartment Association

Opposition:    California Municipal Utility Association;  
               Association of California Water Agencies;  
               League of California Cities

Prior Legislation:  AB 1785 (1995)  Vetoed
                              
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